in Interest of KNBE

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 17, 2019

2019COA157

No. 18CA2073, People in Interest of KNBE — Juvenile Court —
Dependency and Neglect — Termination of the Parent-Child
Legal Relationship — Expert Testimony; American Indian Law
— ICWA; Constitutional Law — Due Process

A division of the court of appeals holds that a parent whose

parental rights may be terminated in a dependency and neglect

proceeding does not have a due process right to have an attorney

present during an interview with an expert retained by the

Department of Human Services.
COLORADO COURT OF APPEALS 2019COA157

Court of Appeals No. 18CA2073
City and County of Denver Juvenile Court No. 17JV275
Honorable Donna J. Schmalberger, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of K.N.B.E. and M.B.B.E., Children,

and Concerning K.B.E.,

Respondent-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE J. JONES
Fox and Tow, JJ., concur

Announced October 17, 2019

Kristin M. Bronson, City Attorney, Laura Grzetic Eibsen, Assistant City
Attorney, Denver, Colorado, for Petitioner-Appellee

Barry Meinster, Guardian Ad Litem

Tammy Tallant Law, LLC, Tammy Tallant, Palisade, Colorado, for Respondent-
Appellant
¶1 This is a dependency and neglect case. K.B.E. (mother)

appeals the juvenile court’s judgment terminating her parent-child

legal relationships with twins K.N.B.E. and M.B.B.E. (the children).

She argues that the juvenile court erred by allowing testimony and

evidence from a qualified expert witness obtained in an interview

with her because she didn’t have her attorney with her during that

interview. We conclude, however, that mother didn’t have a right to

have counsel present during the interview, and therefore we affirm.

I. Background

¶2 The Denver Department of Human Services filed a petition in

dependency and neglect alleging that mother had tested positive for

marijuana and amphetamine when she was admitted to the

hospital just before the children were born. The petition also

alleged that the children had stayed in the hospital for nearly a

month after being born to address problems stemming from

prematurity and drug exposure and that mother was homeless and

had nowhere to take the children when released from the hospital.

¶3 Mother is a member of the Northern Cheyenne Tribe (the

Tribe). After verifying that the children were also eligible to be

enrolled, the Tribe accepted the children for enrollment and

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intervened in the case. At mother’s counsel’s request, the juvenile

court appointed a guardian ad litem for mother.

¶4 The court accepted mother’s admission to the petition and

adjudicated the children dependent and neglected. The juvenile

court adopted a treatment plan requiring mother to, among other

things, participate in substance abuse and mental health

evaluations and follow through with recommended treatment,

maintain stable housing, obtain legal employment, and visit the

children regularly.

¶5 Acting pursuant to the Indian Child Welfare Act (ICWA), the

Department retained an expert to determine whether allowing

mother to retain custody of the children was likely to result in

serious emotional or physical harm to the children. As part of his

evaluation, that expert spoke with mother over the telephone.

¶6 Some time later, the Department moved to terminate mother’s

parent-child relationships with the children. Following a hearing,

at which the expert testified, the juvenile court terminated mother’s

parental rights.

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II. Relevant Law

¶7 A juvenile court can terminate parental rights if it finds, by

clear and convincing evidence, that (1) the child was adjudicated

dependent and neglected; (2) the parent didn’t comply with an

appropriate, court-approved treatment plan or the plan wasn’t

successful; (3) the parent is unfit; and (4) the parent’s conduct or

condition is unlikely to change within a reasonable time. § 19-3-

604(1)(c), C.R.S. 2019; People in Interest of C.H., 166 P.3d 288, 289

(Colo. App. 2007).

¶8 And when, as in this case, the termination proceedings

concern Indian children, ICWA imposes additional federal

prerequisites to termination. 25 U.S.C. § 1902 (2018); People in

Interest of A.R., 2012 COA 195M, ¶ 39. As relevant to this case, a

court may not terminate parental rights as to an Indian child

unless evidence, including testimony of a qualified expert witness,

establishes beyond a reasonable doubt that the parent’s continued

custody of the child is likely to result in serious emotional or

physical harm to the child. 25 U.S.C. § 1912(f) (2018); A.R., ¶ 39.

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III. Right to Counsel

¶9 Mother’s counsel filed a motion in limine seeking to exclude

the testimony and report of the qualified expert witness from the

termination hearing. Counsel argued that because the expert had

obtained information from mother during an interview that took

place without her counsel or the guardian ad litem being present to

assist her, allowing the expert to testify and introduce his report

would violate mother’s right to due process. After hearing

argument, the juvenile court denied the motion.

¶ 10 On appeal, mother contends again that the interview with the

qualified expert witness violated her procedural due process rights.

As a result, she says, the juvenile court should have excluded the

expert’s testimony and report.

¶ 11 We review a procedural due process claim de novo. See People

in Interest of C.J., 2017 COA 157, ¶ 25.

¶ 12 “[T]o establish a violation of due process, one must first

establish a constitutionally protected liberty interest that warrants

due process protections.” Id. (quoting M.S. v. People, 2013 CO 35,

¶ 22). Although not articulated in her brief, mother’s due process

argument appears to attempt to import into dependency and neglect

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proceedings the criminal law concept that, under the Sixth

Amendment, a criminal defendant has the right to have counsel

present at all critical stages of the proceeding once she is charged

with a crime. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004).

¶ 13 A party to a dependency and neglect proceeding, however, isn’t

entitled to the same due process rights as a defendant in a criminal

proceeding. See People in Interest of C.G., 885 P.2d 355, 357 (Colo.

App. 1994) (an action to potentially terminate the parent-child legal

relationship is a civil action and therefore due process doesn’t

confer certain rights available in criminal proceedings). Moreover,

an indigent parent’s right to court-appointed counsel in a

proceeding that potentially terminates parental rights is entirely

statutory; it isn’t secured by constitutional mandate. C.H., 166

P.3d at 290. If a respondent parent has an opportunity to appear

through counsel and has an opportunity to present evidence and

cross-examine witnesses, the parent’s due process rights aren’t

violated. See C.G., 885 P.2d at 357; see also A.M. v. A.C., 2013 CO

16, ¶ 29 (“Parents are entitled to notice of the allegations

supporting the motion to terminate, to have a hearing on the

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motion, and, at that hearing, to be assisted by legal counsel.”)

(emphasis added).

¶ 14 Mother was represented by counsel at the termination

hearing. That attorney cross-examined the qualified expert witness

at length. Mother’s counsel also presented the report and

testimony of mother’s own expert. We are persuaded that these

procedural safeguards sufficiently protected mother’s due process

rights.

¶ 15 Our determination squares with the decisions of other

divisions of this court considering whether respondent parents had

a right to counsel under analogous circumstances. Cf. People in

Interest of S.L., 2017 COA 160, ¶¶ 49-50 (juvenile court didn’t

abuse its discretion by denying father’s request for his counsel to be

present during an in camera interview of a child who was the

subject of a dependency and neglect petition); C.J., ¶¶ 29-30

(mother wasn’t entitled to participate, and have the assistance of

counsel, in the Department’s administrative review of placement

where she was afforded a full opportunity to be heard and to

present evidence at a motions hearing and the termination hearing).

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¶ 16 We aren’t persuaded by mother’s argument that she had a

right to counsel because an interview with an expert witness is a

“child-custody proceeding” as that phrase is defined by ICWA. The

Guidelines for Implementing ICWA recommend that a qualified

expert witness “be someone familiar with” the children in the case

and suggest that the expert contact the parents to provide a more

complete picture to the court. Bureau of Indian Affairs,

Guidelines for Implementing the Indian Child Welfare Act 55 (Dec.

2016), https://perma.cc/3TCH-8HQM. But nothing in ICWA’s

language or in the Guidelines indicates that a parent is entitled to

counsel during such contacts with a qualified expert witness, see

25 U.S.C. § 1912(a); 25 C.F.R. § 23.2 (2019), and mother doesn’t

cite any authority supporting such an interpretation. 1

1 Moreover, if we were to adopt mother’s argument that an interview
with a qualified expert witness is a “child-custody proceeding” as
defined by ICWA, all of the notice procedures — such as notice to
the Tribe by registered mail with return receipt requested and a
ten-day waiting period before the proceeding could be held — would
apply. See 25 U.S.C. § 1912(a) (2018); 25 C.F.R. § 23.2 (2019);
§ 19-1-126(1)(b), C.R.S. 2019; B.H. v. People in Interest of X.H., 138
P.3d 299, 302 (Colo. 2006) (when the court knows that an Indian
child is involved in a “child custody proceeding” the state must
provide notice to the child’s tribe).

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¶ 17 Because we determine that mother didn’t have a due process

right to counsel during the interview, we don’t need to address her

contention that the juvenile court erred by refusing to exclude

evidence and testimony about the statements she made to the

qualified expert witness.

IV. Conclusion

¶ 18 We affirm the judgment.

JUDGE FOX and JUDGE TOW concur.

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